This blog focuses on news and information regarding practice in the federal courts in the Eastern District of California, with a special emphasis on criminal and civil rights cases.

Blog Author

John Balazs is an attorney in Sacramento, California, specializing in criminal defense, including appeals, habeas corpus, pardons, expungements, and civil forfeiture actions. After graduating from UCLA Law School in 1989, he clerked for Judge Harry Pregerson of the U.S. Court of Appeals for the Ninth Circuit. John was an Assistant Federal Defender in Fresno and Sacramento from 1992-2001. Please email EDCA items of interest to Balazslaw@gmail.com. Follow me on twitter @balazslaw.

Disclaimer

This blog is for informational purposes only. Nothing in this blog should be construed as legal advice. The law can change rapidly and information in this blog can become outdated. Do your own research or consult with an attorney.

Prosecutorial Misconduct

January 24, 2015

In the Huffington Post, Eric McDavid's post-conviction attorney Ben Rosenfeld says his client deserves answers from the feds who kept exculpatory information from McDavid at trial. He questions the government's view that we don't know what happened, but whatever happened must have been inadvertent. (Yeah, isn't that inherently contradictory?) Rosenfeld calls for an official inquiry into what happened and why.

I second that, and many in the defense bar feel the same. Why is it that judges are far more likely to issue an order to show cause to a defense attorney for missing a court appearance or a purported local rules violation than to the prosecution after it is discovered that they failed to disclose exculpatory evidence at trial?

Here are some excerpts from Rosenfeld's piece:

Rather than explain what happened, though, federal officials are trying to skate away with the hollow press statement that "a mistake was made." They contend they promptly turned over the missing documents upon discovering them, and that they were not important to the defense anyway. Both claims are patently untrue.

* * *

Contrary to the government's public relations spin, the documents it withheld were central to Mr. McDavid's entrapment defense. Clearly, the government recognizes their importance too or it would not have negotiated McDavid's release. They include love letters to Anna, and evidence she pretended to reciprocate his feelings to keep him on the hook, writing to him, for example, "I think you and I could be great, but we have LOTS of little kinks to work out," and, "I hope in Indiana we can spend more quality time together, and really chat about life and our things."

The government's repeated insistence that it simply overlooked this correspondence strains credulity. Correspondence between an informant and a target is rudimentary evidence in a criminal case. Mr. McDavid's trial attorney Mark Reichel made it a centerpiece of his cross-examination of the informant, getting her to admit only grudgingly that McDavid had sent her romantic epistles, which she downplayed as containing only a "slight indication that he might have been interested in me." In point of fact, he opened his heart to her, declaring, for example, "all the endorphins shoot off in my head when ever I think of u." Prosecutors did nothing to correct the informant's misleading testimony.

* * *

Prosecutors kept up the charade well after Mr. McDavid filed his habeas petition. . . . : "Although McDavid insinuated throughout the trial that there was a romantic relationship between himself and Anna, the evidence was to the contrary."

In the meantime, Mr. McDavid sat in prison for two more years. The government also withheld evidence that the FBI ordered, then mysteriously canceled, a polygraph examination of Anna the informant, suggesting both that the FBI had doubts about her credibility and that it wanted to bury those doubts at a critical junction in the case, just before Anna roped all of the co-defendants together from around the country for a meeting at Mr. McDavid's house. It was at that meeting, the government alleged, that the group agreed to do something.

Like the missing correspondence, the polygraph order remained concealed throughout trial. It surfaced only in response to a Freedom of Information Act request which McDavid's supporters submitted 2-3 years after his conviction. In response, the government produced roughly 2,500 heavily reacted pages while holding back nearly 900 others on various grounds. Among the items redacted in the polygraph order is the mere name of the Assistant U.S. Attorney who signed off on it, concealed for alleged privacy reasons.

* * *

The U.S. Attorney is correct about one thing: As a condition for being released from prison, Mr. McDavid pleaded guilty to a new felony charge of general conspiracy which carries a maximum penalty of five years in prison, half the time he had already served. But if McDavid was entrapped, as the evidence overwhelmingly shows, he is in a real sense innocent. Before the FBI fastened Anna the informant onto him and pursued him relentlessly with dirty tricks, he had no predisposition whatsoever to commit the charged offense. Whatever conspiracy he may have joined was a pure artifice of the FBI's and Anna's from the start.

The U.S. Attorneys who negotiated Mr. McDavid's release are not responsible for his entrapment or unfair prosecution. They inherited the case after the fact and acted honorably by helping to correct a grievous injustice. But they need to stop vouching for their predecessors and start conducting an inquiry. Ninth Circuit Chief Judge Alex Kozinski recently warned of "an epidemic of Brady [evidence withholding] violations abroad in the land." Unless and until prosecutors explain their so-called mistake, the public should doubt that's all it was.

January 18, 2015

"Role of FBI informant in eco-terrorism case probed after documents hint at entrapment, Guardian, 1/13/15. This includes excerpts from a hand-written love letter from McDavid to "Anna" and emails exhanged between them, which were first disclosed to the McDavid defense team in November 2014.

"Another view: Mistake was made, but no misconduct in eco-terror case," SacBee, 1/17/15. U.S. Attorney Ben Wagner's opinion piece criticizing the fairness of the SacBee's coverage of the McDavid release proceedings.

"After nine years in prison, accused eco-terrorist adjusts to sudden release," SacBee, 1/17/15. The Bee's third front-page story on McDavid's release.

October 15, 2013

Last week, a jury returned a guilty verdict on all three counts in a marijuana cultivation re-trial out of Lassen County in United States v. Arroyo, No. 09-CR-273-JAM. Before the verdict, the defense filed an interesting motion to dismiss or, alternatively, for other sanctions for prosecutorial misconduct and false evidence. [revised 10/31: The motion to dismiss was denied, but Judge Mendez gave the defense's requested jury instruction as an alternative sanction.]

Speaking of government misconduct, Laura Duffy, the U.S. Attorney for the Southern District of California, recently conceded error and moved for summary reversal after the 9th Circuit, en banc, ripped the government for insisting that its closing argument was proper. SeeAbove the Law, 9/23/13, which is worth a read, even if you don't watch the full embedded video. While consistently arguing it did nothing wrong in the district court and on appeal, Ms. Duffy recently reversed course after the en banc argument. She not only agreed to the reversal, but also represented to the Ninth Circuit that their office would be using the video of the en banc oral argument as a training tool for prosecutors. U.S. v. Maloney, Motion for Summary Reversal.

January 22, 2010

The Truckee-Carson Irrigation District announced Thursday all charges have been dropped in a federal indictment against TCID. According to a press release, Judge James C. Mahan of the Federal District Court for the District of Nevada approved the dismissal with prejudice of all charges against TCID, Lyman McConnell, and John Baker in a federal indictment issued by a Grand Jury on Dec. 3, 2008.

“TCID has always asserted its innocence regarding these charges,” said Ernie Schank, president of the TCID board of directors. “In the face of some very significant motions filed by Michael Van Zandt, TCID's defense counsel, based partially on alleged government misconduct during the investigation, and to its credit, the U.S. Attorney's Office in Reno took a look at the case and decided not to go forward with the prosecution of TCID.”

“There were some significant concerns raised by these motions that undermined the government's theory of the charges and demonstrated that the charges in fact were not well-founded,” Van Zandt said.

As to the misconduct allegations, Van Zandt said he cannot give specific information, but indicated it involved the manner in which the case was investigated by the U.S. Department of Interior Office of the Inspector General under the supervision of the U.S. Attorney's Office in Sacramento.

December 15, 2009

As reported in the Orange County Register, CDCA Santa Ana U.S. District Judge Cormac J. Carney today acquitted one defendant and dismissed charges against a second defendant in the Broadcom backdating case using the court's supervisory powers to remedy the government's misconduct in intimidating witnesses. [Added 12/16/09 NYT story].

May 08, 2009

Let me see if I got this right. The FBI has evidence that its informants committed a murder that a defendant is charged with committing in state court. To protect its informants, the government does not disclose its evidence. The defendant is convicted of murder and sues after he is exonerated. The government takes the position that it had no duty to disclose its evidence of the defendant's innocent because the defendant was being prosecuted in state court. How can anyone think that is a lawful and and ethical position to take? At least the judge saw through that mumbo-jumbo in awarding the defendant and others who were wrongly convicted of murder over $100 million.

As TalkLeft noted in 2002, Joseph Salvati had good reason to sue the FBI. The nation's premier law enforcement agency encouraged false testimony against Salvati at his state court murder trial because it knew the murder had actually been committed by FBI informants. Protecting its informants became a higher FBI priority than protecting the liberty of innocent people.

In its defense of Salvati's lawsuit, the Justice Department attempted to convince District Court Judge Nancy Gertner that the FBI didn't know Salvati's accuser would commit perjury, and that even if it did it had no duty to disclose evidence of Salvati's innocence because Salvati was being prosecuted in a state court. As TalkLeft noted in 2007, Judge Gertner rejected those arguments and awarded $101.7 million to Salvati and three others who were wrongly convicted of the murder.

Salvati is still waiting to collect. He's 76 years old, living with his wife in a one bedroom apartment. They get by on Salvati's social security benefit and his wife's small pension. The FBI should have apologized and written a check years ago. Instead, the Justice Department continues to insist that the FBI did nothing wrong.

May 06, 2009

According to this piece in the National Law Journal, Attorney General Eric Holder met with about 90 federal district judges,

At the meeting, Holder said improvements to the Office of Professional Responsibility were imminent. "The attorney general said he was going to take [OPR] complaints very seriously and that the whole process has to be more transparent and timely resolved," said one chief judge.

Holder invited the judges to contact him directly about problem prosecutors and other areas of concern. He even gave the crowd his phone number, a symbolic gesture that resonated with many judges who say the department's emphasis on national security, while justified, has put distance between the two branches in recent years. The judges said Holder won high marks for his candor and attentiveness. (He received two standing ovations -- one more than any visiting attorney general in recent memory, the judges said.) . . .

Holder also said his department would take steps to eliminate the vast disparities in federal sentencing for possession of crack versus powdered cocaine and expressed his commitment to look into alternative courts to deal with drug-related offenses, the judges said.

April 09, 2009

I've previously reported on the S.D. Florida Shaygan case, which resulted in not guilty verdicts on all 141 counts after a trial at which defense attorneys learned the U.S. Attorney's office had authorized witnesses to tape their conversations with defense attorneys during the defense's pretrial investigation of the case. After the trial, U.S. District Judge Alan S. Gold held a 2-day hearing on a motion for sanctions under the Hyde Amendment, after which the government admitted misconduct and agreed to (limited) attorney fees as a sanction. Download Shaygan - Govt Response Misconduct. Shaygan's attorneys, including former Judge Karlton clerk Marc Seitles, filed an excellent response calling for much more extreme sanctions. Download Shaygan - Reply

Today, Judge Gold awarded the Full Monty! Download Shaygan - Order on Defendant's motion for Hyde Amendment Sanctions: $601,795.88 in attorney fees and costs, an injunction against the SDFLU.S. Attorney's Office against "future witness tampering investigation of defense lawyers," a public reprimand against the US Attorney's office and individual prosecutors, and a referral to the appropriate State Bar's disciplinary board for possible sanctions. Oh, and in case he forgot something, the judge reserved the right "to impose any further sanctions and/or disciplinary measures against AUSAs Cronin and Hoffman after reviewing the results of the Department of Justice's Investigation." Congratulations to SDFL attorneys David Markus, Marc Seitles, and the whole gang!